2015 (11) TMI 1465 - HC - Customs

Levy of anti dumping duty - whether the respondents are justified in issuing demand notice seeking to recover anti-dumping duty on the sheet glass imported by the petitioner falling under CTH 70049099 - Held that - designated authority in its final findings has below the table put a note stating that the subject goods were also being imported under other tariff headings as detailed thereunder and that the customs notification is indicative only and is not binding on the scope of that investigation. However, the Central Government, after considering the recommendations made by the designated authority, has not thought it fit to include the said note in the notification dated 13.3.2015. Insofar as the notification dated 13.3.2015 is concerned, the definitive anti-dumping duty is imposed only on sheet glass bearing Tariff Item No.70042011 and 70042019. Insofar as the goods in question bearing Tariff Item No.70049099 are concerned, no notification under rules 18 and 20 of the rules has been issued levying definitive anti-dumping duty on such goods. It follows as a necessary corollary that in the absence of any anti-dumping duty being levied under rules 13 and 19 of the rules, the respondent authorities do not have any authority in law to demand or collect any anti-dumping duty in relation to the goods not covered by the notification. Under the circumstances, the impugned demand notice as well as the communication dated 30.3.2015 are without any authority of law and therefore, cannot be sustained. The very premise on which the respondents seek to recover anti-dumping in respect of sheet glass falling under Tariff Item 70049099 viz. to safeguard the interest of the revenue, is itself fallacious, having regard to the fact that anti-dumping duty is levied for the protection of domestic industry and not to safeguard the interest of the revenue. - Decided in favour of assessee.

Summary

Issues Involved:
1. Jurisdiction and authority to levy anti-dumping duty on imports of glass sheets classified under Tariff Item 70049099.
2. Validity of the demand notice and communication for anti-dumping duty on glass sheets under Tariff Item 70049099.

Issue-wise Detailed Analysis:

1. Jurisdiction and Authority to Levy Anti-Dumping Duty on Imports of Glass Sheets Classified Under Tariff Item 70049099:

The petitioner challenged the imposition of anti-dumping duty on glass sheets imported from China under Tariff Item 70049099, arguing that such imposition was without jurisdiction and authority of law. The petition was filed under Article 226 of the Constitution of India. The petitioner contended that the goods imported were not covered under the specific tariff items (70042011 and 70042019) mentioned in the notification issued by the Central Government, and hence, anti-dumping duty could not be levied on them.

The designated authority recommended anti-dumping duty on sheet glass under Tariff Items 70042011 and 70042019. The note below the findings indicated that the subject goods were also imported under other tariff headings, including 70049099, but this classification was not binding on the scope of the investigation. The Central Government issued Notification No.07/2015-Customs (ADD) imposing definitive anti-dumping duty only on goods under Tariff Items 70042011 and 70042019. The petitioner argued that since their imports fell under Tariff Item 70049099, which was not included in the notification, the respondents had no authority to demand anti-dumping duty.

The court observed that while the designated authority mentioned other tariff headings in its findings, the Central Government did not include this note in the notification. Therefore, the definitive anti-dumping duty imposed by the notification applied only to sheet glass under Tariff Items 70042011 and 70042019. Consequently, the respondents could not extend the scope of the notification to include items not explicitly mentioned.

2. Validity of the Demand Notice and Communication for Anti-Dumping Duty on Glass Sheets Under Tariff Item 70049099:

The petitioner received a demand notice and a communication requiring them to submit a bond and bank guarantee for provisional clearance of the consignment. The respondents argued that there was ambiguity regarding whether the tariff items mentioned in the note below the duty table were subject to anti-dumping duty. They sought clarification from the Central Government and decided to assess the imports provisionally.

The court noted that Rule 20 of the rules stipulates that anti-dumping duty takes effect from the date of its publication in the Official Gazette. Since no notification under rules 18 and 20 was issued for goods under Tariff Item 70049099, the respondents had no authority to demand or collect anti-dumping duty on such goods. The court held that the demand notice and the communication were without authority of law and could not be sustained.

The court concluded that the respondents' action to recover anti-dumping duty on sheet glass under Tariff Item 70049099 was fallacious, as anti-dumping duty is intended to protect domestic industry, not to safeguard revenue interests.

Conclusion:

The court held that the respondents had no authority to demand anti-dumping duty on goods imported under Tariff Item 70049099, as they were not covered by the notification. The impugned demand notice and communication were quashed and set aside, and the petition was allowed. The action of the respondents was declared without jurisdiction and authority of law. The court made the rule absolute with no order as to costs.